Tuesday, March 29, 2011

Over at Stratfor, George Friedman has written an outstanding essay which asks the sensible question: "What Happened to the American Declaration of War?" He makes the point that there has not been a declaration of war passed by Congress since 1941, at the start of World War II -- even though America has since been involved in no less than six wars: Korea, Vietnam, Kuwait-Iraq, Afghanistan, Iraq again, and now Libya.

In words that echo as eerily familiar to those which President Obama is using today, Harry Truman justified his sending of troops into Korea without a declaration of war on these grounds:

When North Korea invaded South Korea, Truman took recourse to the new U.N. Security Council. He wanted international sanction for the war and was able to get it because the Soviet representatives happened to be boycotting the Security Council over other issues at the time.

Truman’s view was that U.N. sanction for the war superseded the requirement for a declaration of war in two ways. First, it was not a war in the strict sense, he argued, but a “police action” under the U.N. Charter. Second, the U.N. Charter constituted a treaty, therefore implicitly binding the United States to go to war if the United Nations so ordered. Whether Congress’ authorization to join the United Nations both obligated the United States to wage war at U.N. behest, obviating the need for declarations of war because Congress had already authorized police actions, is an interesting question. Whatever the answer, Truman set a precedent that wars could be waged without congressional declarations of war and that other actions — from treaties to resolutions to budgetary authorizations — mooted declarations of war.

Lyndon Johnson, meanwhile, feared he could not get a declaration of war, and so he simply went to war without one, using an isolated (and then trumped-up) incident as a pretext:

By the time Vietnam came up, the transition from military assistance to advisers to advisers in combat to U.S. forces at war was so subtle that there was no moment to which you could point that said that we were now in a state of war where previously we weren’t. Rather than ask for a declaration of war, Johnson used an incident in the Tonkin Gulf to get a congressional resolution that he interpreted as being the equivalent of war. The problem here was that it was not clear that had he asked for a formal declaration of war he would have gotten one. Johnson didn’t take that chance.

What Johnson did was use Cold War precedents, from the Korean War, to nuclear warfare, to covert operations to the subtle distinctions of contemporary warfare in order to wage a substantial and extended war based on the Tonkin Gulf resolution — which Congress clearly didn’t see as a declaration of war — instead of asking for a formal declaration. And this represented the breakpoint. In Vietnam, the issue was not some legal or practical justification for not asking for a declaration. Rather, it was a political consideration.

For Friedman, the Vietnam War marked the abandonment by the United States of its constitutional principle that while the President is commander-in-chief of its armed forces, the sovereign people, through an act of their elected representatives, must first authorize him to take the country into war (emphasis added):

Johnson did not know that he could get a declaration; the public might not be prepared to go to war. For this reason, rather than ask for a declaration, he used all the prior precedents to simply go to war without a declaration. In my view, that was the moment the declaration of war as a constitutional imperative collapsed. And in my view, so did the Johnson presidency. In hindsight, he needed a declaration badly, and if he could not get it, Vietnam would have been lost, and so may have been his presidency. Since Vietnam was lost anyway from lack of public consensus, his decision was a mistake. But it set the stage for everything that came after — war by resolution rather than by formal constitutional process.

Formal resolutions of war serve a very important function in our democracy -- they represent a unification of all Americans, through their elected representatives, behind the goals of the war in question. But as Friedman observes, such declarations serve other important objectives, as well:

A declaration of war, I am arguing, is an essential aspect of war fighting particularly for the republic when engaged in frequent wars. It achieves a number of things. First, it holds both Congress and the president equally responsible for the decision, and does so unambiguously. Second, it affirms to the people that their lives have now changed and that they will be bearing burdens. Third, it gives the president the political and moral authority he needs to wage war on their behalf and forces everyone to share in the moral responsibility of war. And finally, by submitting it to a political process, many wars might be avoided. When we look at some of our wars after World War II it is not clear they had to be fought in the national interest, nor is it clear that the presidents would not have been better remembered if they had been restrained. A declaration of war both frees and restrains the president, as it was meant to do.

Without the preventative of a constitutional requirement to declare war, the President is free to do as he is doing now: placing our armed forces in harm's way to serve the objectives of other groups and interests -- be they NATO, the UN, or just some of our allies. And, says Friedman, to do so represents a confusion, or confounding, of the national interest with the role of America as an empire -- as part of a more global hegemony (emphasis added):

. . . What is most important is that the republic not be overwhelmed in the course of pursuing imperial goals. The declaration of war is precisely the point at which imperial interests can overwhelm republican prerogatives.

There are enormous complexities here. Nuclear war has not been abolished. The United States has treaty obligations to the United Nations and other countries. Covert operations are essential, as is military assistance, both of which can lead to war. I am not making the argument that constant accommodation to reality does not have to be made. I am making the argument that the suspension of Section 8 of Article I as if it is possible to amend the Constitution with a wink and nod represents a mortal threat to the republic. If this can be done, what can’t be done?

That is the real point of concern: "amending the Constitution with a wink and a nod." If the Constitution can be ignored by consensus, or by indifference, then we are no longer a nation under law, but under men (generically speaking, of course).

ECUSA is also an organization of men (generically, again), under a Constitution. Lately, however, its Presiding Bishop, and both General Convention and the House of Bishops under her leadership, have ignored the Constitution in the interest of advancing specific social and legal objectives. For example, General Convention 2009 saw fit to recognize and seat the deputations from four former dioceses, without the necessity of their following the Constitution and organizing themselves properly into new dioceses as required by Article V. This served the purpose of being able to claim in court that they were already dioceses, because they had never left the Church. (Even though the Constitution does not say so, the current leadership argues in court that a diocese can never leave the Church, because it needs all the diocesan property and assets -- as well as the threat of lawsuits against other dioceses -- in order to survive.)

Or again, General Convention, the House of Bishops and its presiding officer have enacted a new disciplinary section (Title IV) of the Canons, which without any constitutional authority whatsoever transforms the Presiding Bishop into a full metropolitan, with episcopal authority over every other bishop. This transformation defies 222 years of historical tradition and precedent, but it was done "with a wink and a nod", after just fifteen minutes of debate.

The weakness of Constitutions is that if no one insists that they be followed, they have no mechanism of self-enforcement. Disobeying a Constitution sets a very bad precedent, but as with Korea or the Gulf of Tonkin, a bad precedent still becomes a precedent. It is expedient for President Obama to subjugate our national interests to those of France, Britain and NATO (to say nothing of the UN). And it is expedient for Bishop Jefferts Schori to subjugate the independence of dioceses to her metropolitical will.

The cost to be paid for giving in to expediency, however, is never reckoned until it is too late. America becomes a tool of global interests, and ECUSA becomes a tool of the Zeitgeist, the contemporary culture. Notice that the former, in doing so, loses all meaning as a republic. And the latter, in doing so, loses all meaning as a church.

Here we have a book which is guilty of every thought crime imaginable today: it is sexist, chauvinistic, militaristic, judgemental, intolerant, bigoted, and exclusivist. It is totally politically incorrect, and in today’s wimpy spiritual climate, it is theologically incorrect as well.

Consider the many ways in which it offends our modern sensibilities. It is clearly a male-dominated book, with patriarchal and chauvinistic themes and images running throughout. . .. . .And consider all the times repentance is mentioned in this book. If we just look at the seven churches we find Jesus calling them to repent time and time again. And what about verses like Rev. 9:20-21? “The rest of mankind who were not killed by these plagues still did not repent of the work of their hands; they did not stop worshiping demons, and idols of gold, silver, bronze, stone and wood – idols that cannot see or hear or walk. Nor did they repent of their murders, their magic arts, their sexual immorality or their thefts.”

But I thought Jesus wasn’t into repentance. All my Christianity-lite and emergent church buddies insist that Jesus hardly ever spoke about repentance. Jesus does not make any heavy demands – he welcomes us all with wide-open arms.

And they also told me that we can forget everything else and just concentrate on the love of God. This is the supreme attribute, as I have been told so often. All other attributes are really just secondary to his love. . .

The love of God is hardly mentioned in the book. . . .

As Fr Kendall Harmon would say, read the whole thing. And then complete your Lenten studies by using the remaining weeks to re-read the Book of Revelation.

My second highly recommended Lenten post recounts a true story about the late Pope John Paul II, of blessed (soon to be sainted) memory. It comes from a Catholic blog, Laudem Gloriae, whose author (unlike yours truly -- that's why I admire her blog so much) is always pithy and to the point. (I owe my introduction to her to another of my favorite bloggers, Mrs. P.)

Here is the beginning of this marvelous Lenten story -- you will have to visit Christine's blog ("The Beggar and the Pope") to finish it:

A priest from the Archdiocese of New York was visiting Rome. As he was walking into a church to pray, he noticed a beggar sitting at the front door—not an unusual sight in Rome. But something about this particular beggar bothered him. He didn’t figure it out until he began to pray: he suddenly realized that he knew the man from his days in the seminary.

He immediately went back outside and said to him, "Excuse me, do I know you?" Sure enough, the beggar had been in the seminary with him many years earlier. He had been ordained a priest, but had [in his words] "crashed and burned" in his vocation.

The priest from New York was understandably shaken up when he left the beggar a few minutes later.

That afternoon he was at the Vatican, and had the opportunity to meet the pope and speak with him. He said to him, "Please, Holy Father, pray for this particular man. I went to seminary with him, and he’s now a beggar on the streets of Rome. Please pray for him, because he’s lost."

I remember the first Spring meeting we had there after the melt-down General Convention in Phoenix when Ed Browning decided we needed to meet more regularly as bishops, to work on our common life, and to find venues in which to pray and talk and relate to one another, free from the highly-charged “political” atmosphere of General Convention or even the traditional Fall meetings of the House.

I think these meetings have served us well and one doesn’t [hear] the “d” word –”dysfunctional” — thrown around quite so much any more describing the House of Bishops. These Spring meetings used to have more of a ‘retreat’ atmosphere which I always appreciated. I think some of that has gone by the wayside over the years, but the conference/retreat center setting of Kanuga still lends itself to a different feeling for the meeting.

Given the collegial atmosphere and expectations, therefore, it comes as a bit of a shock to learn that the leadership of ECUSA has arranged a slightly different agenda for the 2011 spring meeting of the House of Bishops. That agenda includes an indoctrination of the attendees into what President Ronald Reagan once memorably called "the soft tyranny of low expectations" (and which George W. Bush changed into "the soft bigotry of low expectations"). Again, we have this eyewitness account (I have added the bold emphasis):

After a challenging address by the PB to “show up” in the various challenging venues of today’s world, we had a report from a committee on changes in governance of The Episcopal Church, concerns about the new Title IV Canon revisions (clergy discipline), a report from the committee on same gender blessings, and from a group looking at devising a process for the “reconciliation or dissolution of a pastoral relationship between a bishop and a diocese!”

Wow! For the new bishops: welcome to your new role!

"Welcome to your new role," indeed. Bishop Epting (now retired, but attending in lieu of Bishop Scarfe of Iowa, who is on a sabbatical) may not realize how close he has come to hitting the nail on the head. While the number of new bishops in the House of Bishops not politically significant, and is at best a dozen or so among a total of about 130, it is essential that the new bishops be, in the words of Oscar Hammerstein, "carefully taught".

And what better subject for the "teachers" than the newly created metropolitan authority of the Presiding Bishop herself? She begins the process with an exhortation to the assembled bishops to "show up in the various challenging venues of today's world" (how postmodern can we make this?). Having thereby subtly established her authority to issue pastoral directives to her colleagues, she hands the real task of instruction over to those who were the architects of the changes to Title IV of the national Canons -- the members of the (Second) Title IV Task Force. The constitutionality of their changes has been called into serious question, both on this blog and on others deeply concerned with Episcopal Church polity. It is a bit disconcerting, but nevertheless entirely within the character of the current administration, to have the assembled bishops hear only from members of the Title IV Task Force, who continue to maintain -- in the face of all historical and logical evidence -- that they are right and every other canon law expert is just wrong.

Enter "the soft tyranny of low expectations": the new bishops, having never known what it means to be an independent diocesan with no superior, will not miss their freedom. And they will be ushered into the new Era of Jefferts Schori, when the slightest challenge they might offer to the Primate's authority can trigger an immediate suspension from office. Talk about being kept in line -- they will never summon the gumption to test the strength of the velvet nooses around their necks!

There will be some exceptions, notably the Bishop of South Carolina, who kowtows only to Christ, and not to any mere mortal. Any such show of independence may well serve as the initial test of the Presiding Bishop's authority; but she may also be cautious at first, and choose to establish precedent with a spineless specimen who she knows will not fight back. When the House of Squishops backs her up, she will know that it is time to make her move.

And then the "soft tyranny of low expectations" will meet "Don't Tread on Me." We are in for some interesting days.

[UPDATE 04/03/2011: The picture continues to be filled in by more reports. It turns out that "Doubting Thomas" and I (see the previous update, below) were talking about two completely separate events. In addition to the "Short Course" presented for those who will be involved in disciplinary proceedings under the new Title IV, which took place during the two days before the official start of the HoB meeting, there was also a special committee of bishops appointed by the Presiding Bishop to look into the controversy surrounding the adoption of the new Title IV. As far as I am able to tell, this special committee, or "task force" (hence the confusion with the "Title IV Education Task Force" and the "Title IV Task Force II"), met with the members of the Title IV Task Force II (both episcopal and lay), who had drafted the changes, and with Messrs. Runyan and McCall, and then made a report to the House of Bishops which thus included a summary of the reasons why Bishops Lawrence and MacPherson believed the changes to have gone beyond the constitutional powers of General Convention. This "report", and the brief discussion which followed it, took place at the opening Friday session of the House of Bishops, but was not reported in the official summary. Nevertheless, it now appears to be what Bishop Epting was writing about, while the two other reports mentioned below obviously had to do with the pre-conference Short Course, since they were dated earlier and referred to a two-day session.

Although the special HoB "task force" thus was separate from the members of the Title IV Education Task Force who had presented at the Short Course, its membership nonetheless included Bishop Robert L. Fitzpatrick of Hawaii, who served on the Title IV Task Force II. And it is still of consequence to note that despite the report, the House of Bishops took no action to request the convening of a Special General Convention to deal with the coming constitutional crisis over the implementation of the new Title IV starting next July 1. It is for that reason that I find today's Gospel reading (John 9:1-41) so apt.]

[UPDATE 04/02/2011: Over at StandFirm, commenter "Doubting Thomas" challenges the accuracy of the above account, having learned from his "source" at the HoB meeting that the presentation to the assembled bishops included the concerns of Bishop Lawrence and his counsel, C. Alan Runyan, and was not as one-sided as portrayed.

I stand ready to correct any misstatements above; I always respond to corrections. In this case, however, while I do not doubt that Bishops Lawrence, MacPherson and perhaps others raised their doubts about the constitutionality of the Title IV changes during the discussion at the Kanuga Conference Center, I continue to have my doubts about the balance of the presentation.

First of all, readers should note that the coverage of the Title IV discussions was pretty much nil in the blogosphere; apart from Bishop Epting's blog, which I quoted above, there is only this post by Bishop Lane, and this brief Tweet by Bishop Prior. The daily official summaries from the House of Bishops contain no mention of the discussions. And now, after some further research, I find out the reason why this is so.

It turns out that the sessions dealing with the Title IV changes were not part of the regularly scheduled House of Bishops meeting; they took place in the form of a pre-meeting "Short Course" put on by the College of Bishops for any diocesan bishops, their canons to the ordinary, and their intake officers who wanted to arrive two days early. Here is a link to a description of, and application to attend, the two-day "Short Course" -- note that a $450 tuition fee was charged. And please note who are the "Facilitators" for it (second and third bold emphasis added):

FacilitatorsRepresentatives from the Nathan Network, Chancellors Network, Church Pension Group, the Title IV Education Task Force as well as noted psychologists and psychiatrists will be present.

The "Chancellors Network" is the shorthand name of the group consisting of those church attorneys who are the chancellors of the various Episcopal dioceses. Among their members are Duncan A. Bayne and Diane E. Sammons, both of whom served on the Title IV Task Force II on Disciplinary Policies and Procedures, which proposed the final Title IV revisions to GC 2009. Here is a link to a program of the 2010 meeting of the Chancellors Network, which shows on the third page that Mr. Bayne and Ms. Sammons gave a presentation about the Title IV changes to that meeting. Both Mr. Bayne and Ms. Sammons serve on the second group whose name I bolded above, the "Title IV Education Task Force". As I say, I stand ready always to correct what I report here, but I would certainly be surprised if neither Mr. Bayne nor Ms. Sammons (nor Bishop Dorsey Henderson, for that matter -- another member of the latter group) was among the "Facilitators" of the Short Course at Kanuga.

To date, there has been no counter-response to these criticisms from the Title IV Education Task Force, even though I have an open invitation to Mr. Bayne to explain just how the shift to a metropolitan Presiding Bishop could be made via a revision to the Canons, instead of first amending the Constitution, in light of the history of all the previous attempts to do so as detailed in the posts linked above.

Therefore, while I would be happy to learn from any actual participant that there was a free and open discussion of the criticisms of the changes articulated here and by Messrs. McCall and Runyan, to date I have seen nothing that requires me to change the account I first gave above. If Chancellor Runyan or Mark McCall was actually afforded an opportunity to address the group, then I will happily make that correction; but it sounds as though the facilitators came entirely from the pro-Title IV side.

And please note the most important fact of all: there was no official action taken at the House of Bishops meeting itself concerning Title IV. The pre-meeting training was just that -- an indoctrination for all bishops, especially new ones, into the implementation of Title IV. No action is contemplated between now and July 1 to prevent or delay that implementation.]

Tuesday, March 22, 2011

Three-year-old Jonathan Okseniuk loves his Beethoven. In this incredibly charming video, he conveys his enthusiasm, tremendous sense of rhythm and his infectious joy over the many build-ups to a climax in the last movement of Beethoven's Fifth Symphony in C Minor:

[UPDATE 03/25/2011: Now four years old, Jonathan made his conducting debut just last month, as described in this article. You can also watch videos of him conducting other symphonic works at YouTube.]

Shades of Leonard Bernstein: truly an inspiration for us all -- thank you, Jonathan!

(H/T: ChoralNet -- be sure to read the comments at the original post.)

Monday, March 21, 2011

On March 5, the rump Diocese of San Joaquin authorized the Rt. Rev. Chester Talton, resigned (i.e., retired), to be its new provisional bishop to replace the outgoing Jerry A. Lamb, who is retiring to his home in New Mexico. Bishop Talton, who had been residing in Pasadena, has given an interview to the Modesto Bee (H/T: Titus OneNine) about his hopes and expectations for the rump diocese. While he has a reputation as an excellent pastor, he also exudes an honesty and frankness which is refreshing. At the same time, one can only be astounded by the lack of doubt, or even of the slightest tendency to question, the purpose of the diocese's current litigation program, which has led it to file nine additional lawsuits against individual parishes -- on top of its original lawsuit against Bishop John-David Schofield.

I shall be very careful here not to draw unjustified inferences or conclusions, and not to put words into anybody's mouth. I will let the good bishop's words speak for themselves. But if at the end you are as dismayed as I am by the lack of questioning of the national leadership of ECUSA which appears so evident, I will not be surprised. And I certainly give credit to the Bee's reporter for asking all the right questions.

Let us start with Bishop Talton's reasons for taking the job:

Q: What made you come out of retirement to come here?

A: I had only been retired for six months when the presiding bishop asked me to consider having my name go forward. There are only certain bishops who can serve as provisional bishops. You have to be either retired or a bishop of another diocese. It's pretty difficult to find. And I was living in Pasadena, which was relatively close. There was a need here, so I did allow my name to go forward. I was elected at a special convention on March 5.

"There was a need here" -- not just a need, but many. For next we learn:

Q: What are your priorities as you take on this role of provisional bishop?

A: The diocese has been through a very serious rupture and is focusing more now on ministry and mission. I want to be a part of helping the diocese continue to move in that direction. We have small congregations spread out over large area, some of them very small. We've got clergy serving more than one congregation, which is very difficult. At the same time, we are strengthening the diocese itself, the infrastructure, so we can more effectively service our parishes. If I can be a part of leading a stronger outreach and mission-minded diocese when I leave in two or three years, I would feel as if I'd done some good here.

There can be no quarrel with these priorities which Bishop Talton identifies: ministry and mission, and strengthening the diocese's infrastructure so it can be of more assistance to parishes and their clergy, who are spread rather thin across a large area. All well and good. And then the reporter gets to the nub of the matter:

Q: The Episcopal San Joaquin Diocese owes the national church several hundred thousand dollars for legal fees related to the Anglican diocese moving away and the resulting lawsuits. How will you pay for these costs?

A: The national church is supporting the diocese to a considerable extent. We expect the diocese will regain its assets and property and that will assist in paying back those costs.

This is the astounding part. Forget that Sue Nowicki, the reporter, has it wrong when she talks of "the Anglican diocese moving away" -- it never went anywhere, but is still in Fresno where it has always been since its formation. It has nearly three times the number of parishes and congregations of the rump diocese, and so dwarfs its rump opponent. And forget, too, that "several hundred thousand dollars" does not begin to describe the indebtedness of the rump diocese to the national Church. The real number is closer to one million, and will probably be well in excess of that amount before all the litigation is over.

No, as I say, put aside the reporter's naïve errors of fact. What is astounding is the utter simplicity of the Bishop's answer. He does not deny that hundreds of thousands of dollars are owed. He simply expects to pay it back by selling the properties to be won in the lawsuits.

Now at this stage of his experience, no one can fault Bishop Talton for simply repeating what he has been told is the situation in San Joaquin. He was not there when Bishop Lamb accepted a $420,000 gift from the Executive Council in 2008 to float his initial administration of the diocese, and to get the lawsuit against Bishop Schofield on file as soon as possible. Nor was Bishop Talton there when the Executive Council met in Stockton and agreed to back a new legal strategy to up the ante against Bishop Schofield, by suing all of his incorporated parishes individually. This strategy has been funded to date by placing the rump diocese on the hook for approximately $975,000 in "loans" and "lines of credit advanced by the national Church (actually, by the DFMS, which holds all the money).

But mightn't Bishop Talton at least be expected to express some doubt as to the wisdom of the current program? Let me spell it out, in plain English:

1. Bishop Talton will be replacing Bishop Lamb as the plaintiff in ten lawsuits currently pending in the counties which make up the area of the diocese.

2. The object of the first lawsuit was to recover all the property and money held by the Anglican diocese itself. The object of the other nine lawsuits is to recover all the real property, money and other personal property held separately by the nine separate parishes.

3. Bishop Talton says that when all this property and money has been recovered, it will "assist" the rump diocese in repaying the national Church the money it lent to finance all the lawsuits.

First Conclusion: the property and money it seeks is of primary use to the rump diocese in order to repay loans, which have been taken out to fund the expenses of recovering all the money and property.

The principal component of those "expenses of asset recovery", of course, are the fees paid to the rump diocese's attorneys for all the legal work involved.

Second Conclusion: the attorneys are being paid now, out of the loan proceeds, because the rump diocese cannot raise funds enough on its own to pay them. When and if the loans are ever repaid, the national Church will also have its money back. So the attorneys and the national Church will be taken care of; what about the needs of the rump diocese?

Answer: It has no need of the properties, since it does not have the parish members who can make use of them. And while it could always use the money, it has to pay back all its loans first.

What the good Bishop has frankly admitted is that there is a litigation mill churning away in San Joaquin, which can only be fed by money. The national Church has reached the limit of what it is willing to donate to the mill, and is holding the rump diocese to account for every cent borrowed as grist for the mill from 2009 forward. (The loans are due at the end of 2012 -- but what if the litigation is still dragging on by then? Apparently the parties will cross that bridge when they come to it.)

And the little rump diocese, the David which is taking on the storied Goliath, is bravely shouldering hundreds and hundreds of thousands of dollars in debt which it has no means of ever repaying should its lawsuits prove unsuccessful. How is that for a "mission" worthy of a church? The lawyers will have been paid; the rump diocese could be left holding the bag.

The good Bishop wishes things were not so, but he sees no other alternative to the litigation mill, because it is official policy never to sell any of the property to the realigners:

Q: The philosophy of the Episcopal Church so far has been: "We are not interested in negotiating over property. We want the entire property returned, and if we then have to sell it, we're not selling it back to the congregations who left the Episcopal Church." Do you agree with that philosophy?

A: That's the position of the church at the present time. Yes, I agree with that. I see it as the only recourse that we really have. I think it's unfortunate that we're in the courts over this matter, but there's no other way to recover property and assets. The recovery part continues, but our focus is on serving the Lord and reaching out to the world with the good news we have to offer.

But as you admitted earlier, Bishop Talton, the final object of the lawsuits is not "to recover property and assets", but to repay loans for legal fees spent in the attempt at recovery. The recovery of property and assets is just the means, and not the end. And precisely what is the ultimate object of all this litigating -- the "object all sublime", so to speak? Manifestly, it is to deprive Bishop Schofield's diocese and parishes of their assets, so they can be sacrificed to the attorneys rather than be used for the mission to which they are currently being put.

To recap: ECUSA's contention in the Era of Jefferts Schori has been that there is a fiduciary obligation to recover and preserve assets of "the Church" for the benefit of future generations. We now see, however, that the contention is so much flimflam and folderol. The very process of "recovering" the assets results in consuming them, so that neither side can enjoy their benefits. In the final analysis, the lawyers collect their fees, the salable properties are razed or converted to other uses, and the church goes on, poorer than it was before. It may readily be said that where "fiduciary duty" may be fulfilled only by the destruction of the church's ability to accomplish its mission, then it becomes ludicrous to argue that a fiduciary has no choice but to accept such an outcome, if he is to fulfill his duties. The only winners in such a demolition derby are those who would rather see the church halt, than advance.

As it digs itself ever deeper into a hole, the rump diocese at least has a cheerful and forthright leader. It is thus the more lamentable to have to observe that "good news" is very hard to hear when it has to be shouted from the bottom of a deep, black pit.

Saturday, March 19, 2011

The Texas Court of Appeals at Austin (Third District) has rendered a decision against the Church of the Good Shepherd in San Angelo, Texas, and in favor of the Diocese of Northwest Texas. The ruling affirms the trial court's decision awarding possession and use of the Church's property to the Diocese and the "Continuing Parish Leaders" installed by Bishop J. Wallace Ohl, after the parish and vestry of Good Shepherd voted to realign themselves with the Province of Uganda (The court refers to the realigning group as the "Former Parish Leaders".)

In short, this is another species of the kind of result one finds when a parish individually attempts to withdraw from an Episcopal Diocese. Generally, such decisions have gone in favor of the diocese, due largely to the courts' unhesitating acceptance of the Dennis Canon in light of Justice Blackmun's obiter dictum in Jones v. Wolf (1979) 443 U.S. 595, 606, as explained in this earlier post.

The irony in relying on Jones v. Wolf to decide Episcopal Church cases is that the Supreme Court intended to offer, via that case, an alternative to the traditional approach by which courts were required to defer to decisions by so-called "hierarchical churches". Instead of looking at the organizational character of the church, courts after Jones could follow "neutral principles of law" to decide property disputes, based entirely on the manner in which title was shown to be held. However, many post-Jones courts have treated the Dennis Canon as one more "neutral principle" to be considered, which they then hold trumps the plain, fee simple language of the parish deed, by imposing a perpetual trust on the property in favor of the national church. Since the Dennis Canon came into force without the express consent of the parish to its terms, however (most parishes still have never heard of the Dennis Canon today), that "cram-down" approach harkens back to the days of deference to the hierarchy, undercuts the rationale of Jones, and thereby makes "neutral principles" into nothing more than a cheap shibboleth, useful for demonstrating that the court in question supposedly is up on the law.

The decision by the Texas Third District Court of Appeals takes mockery of "neutral principles" to a new level. For while it contains a detailed comparison of the differences between the approach of Jones v. Wolf and the earlier hierarchical approach, it shows no comprehension whatsoever of what Jones actually held. Consider this passage from the Court's opinion (I have added the bold for emphasis):

The Texas Supreme Court has not expressly approved a particular method to adjudicate church-property disputes, although it has "long recognized a structural restraint on the constitutional power of civil courts to regulate matters of religion in general." Westbrook, 231 S.W.3d at 397-98 (citing Brown v. Clark, 116 S.W. 360, 363 (Tex. 1909)). In Brown, the only church-property dispute it has yet decided, the court was careful to sidestep any issues that fell within the exclusive jurisdiction of the ecclesiastical judicatories, including the case-determinative question of whether the local church possessed the authority to determine that it could enter into union with the denominational Presbyterian Church. . . .

As the Former Parish Leaders correctly point out, the analysis that the court conducted in Brown is consistent with the neutral-principles approach. That does not mean, however, that a Texas court is required to follow the same approach. Because the trial court was not required to adopt any particular approach in resolving the instant dispute, see Wolf, 443 U.S. at 602, we overrule the Former Parish Leaders' first issue asserting that the trial court erred by failing to apply neutral principles of law [footnote omitted].

Contrary to what the Court of Appeals here asserts, Jones v. Wolf did not decide that "trial courts" were not required to adopt any particular approach to resolve church property disputes -- it held that the States were free to adopt "neutral principles of law" as an alternative to the hierarchical deference approach. It was the job of the trial court -- and of the Court of Appeals as well -- to determine which approach the Texas Supreme Court would most likely adopt today, and then to apply that approach consistently to each of the questions presented. Courts within a given State are not free to pick and choose, using "neutral principles" in one case, and "hierarchical deference" in another.

By holding that the trial court was free to do so, and then by using that holding as a basis to overrule the Former Parish Leaders' objections that the trial court had not properly followed "neutral principles", the Court of Appeals took neutral principles to a meaningless extreme. In effect, it said that any approach chosen by the trial court would be the correct one.

Next, the Court of Appeals compounds the confusion by first deciding that "the trial court did not err in deferring to decisions of the Bishop or the Diocese in light of the hierarchical nature of the Episcopal Church" (i.e., had adopted and correctly applied the deference approach), and then immediately thereafter writing:

Although the trial court made no findings of fact or conclusions of law that conclusively establish which approach it adopted, it appears that the trial court did apply neutral principles in rendering the judgment under review.

So which is it? Did the trial court properly defer to the "hierarchical" character of the Episcopal Church, or did it follow and apply "neutral principles" instead? Reading the decision of the Court of Appeals, one simply cannot tell. In a classic ploy to have it both ways, the Court goes on to explain that the result below was consistent with both approaches:

The judgment itself indicates that the court considered and interpreted a number of the documents contained in the record, as it would have done if it were employing the neutral-principles approach. Specifically, the trial court's declaration that "all real and personal property of the Good Shepherd is held in trust for the Episcopal Church and the Diocese" is evidence that the trial court looked to the deed conveying the real property to Good Shepherd, the trust provisions contained in the various Canons of the Episcopal Church and the Diocese, and the governing documents of Good Shepherd.

On this record, we likewise conclude that neutral principles of law mandate that the Episcopal Church and the Diocese, not the Good Shepherd parish, have control of the property in question. Though the deed to the property is held in Good Shepherd's name, the parish agreed from its inception to be a part of the greater Episcopal Church and to be bound by its governing documents. These governing documents make clear that church property is held in trust for the Episcopal Church and may be subject to Good Shepherd's authority only so long as Good Shepherd remains a part of and subject to the Episcopal Church and its Constitution and Canons.

And there we have it: the Statute of Frauds, which since the seventeenth century has required that a declaration of trust needs to be signed by the property owner in order to be valid, does not count as a "neutral principle of law." Instead, because the Episcopal Church (USA) is "hierarchical", it is allowed unilaterally to impose a trust on all its parishes' property in its favor, simply by passing a national canon (bylaw) to that effect. Where is the neutrality in that? No church which is not considered "hierarchical" may so bypass the Statute of Frauds, and neither may you, nor I. But the Episcopal Church (USA) does -- all because of a repeated misreading of gratuitous dictum laid down by that careful scholar of the Constitution, Justice Harry Blackmun (the outcome-based author of Roe v. Wade).

Indeed, the Court of Appeals decision in effect holds that "heads Bishop Ohl wins, tails Good Shepherd loses." Did the trial court not apply neutral principles? Ah, well, it doesn't matter, because under either neutral principles or hierarchical deference, the courts must defer to the Episcopal Church, and so Good Shepherd loses whichever approach is followed. "Neutral principles" is just a fancy name for a few additional steps to be taken -- examining deeds, articles of incorporation, etc. -- before deferring to the national church in any event. There is nothing new under the sun -- nothing at all. Call it what you like, it still comes out the same:

As demonstrated by the foregoing, the trial court's judgment can be affirmed whether we decide this appeal by applying neutral principles of law or by deferring resolution of the determinative question of identity to the proper authorities within the Episcopal Church hierarchy. See Milivojevich, 426 U.S. at 709; Westbrook, 231 S.W.3d at 398. Under either methodology, giving due deference to the Diocese's resolution of the ecclesiastical questions bearing on this appeal, we conclude that when the Former Parish Leaders and the other parishioners aligned with them disaffiliated from the Episcopal Church, the church property remained under the authority and control of the Episcopal Church. Accordingly, the vote to disaffiliate was effective only as to those members who sought to withdraw from the Episcopal Church; it did not have the effect of withdrawing Good Shepherd itself from its union with the Episcopal Church, as the Former Parish Leaders presume [footnote omitted]. Further, having found that the Continuing Parish Leaders are entitled to possession and use of the property, the trial court did not err in declaring that property owned by the local Episcopal parish is held in trust for the Episcopal Church, pursuant to the Episcopal Church Constitution and Canons. We overrule the Former Parish Leaders' third, fourth, and fifth issues.

And that is unfortunately what passes for legal reasoning in most church property cases these days. Courts simply are unable to discern what "neutral principles" really are, when it comes to a non-neutral, highly litigious body like the Episcopal Church (USA). The Church comes into court with reams and reams of poorly reasoned precedent, all of which reduces in its essentials to "ECUSA is 'hierarchical', so it wins." The Church is equally at home under either approach the courts may nominally decide to take. "You want 'neutral principles' cases in which we prevail? We've got 'em. Or you want 'deference' cases? We've got oodles of those, too."

But the truth is, because the courts simply apply the Dennis Canon trust language without thinking as to how an effective trust is properly created, the cases are at bottom indistinguishable. That is why the decision by the South Carolina Supreme Court is such a notable exception -- it is one of the very few courts to date to hold that "neutral principles" really does mean neutral principles, under which the Dennis Canon is legally insufficient to create any trust interest under State law. ECUSA, of course, is counting that it will continue to be the one notable exception in its litigation track record.

Nevertheless, it bears repeating that precedent in cases involving realigning parishes does not constitute governing law for cases involving realigning dioceses. What the Third District Court of Appeals decides in the Good Shepherd case will not have any influence over the Second District when it reviews Judge Chupp's opinion in the case of Bishop Iker's Fort Worth diocese -- which notably eschewed neutral principles altogether, and went ahead solely on the Judge's belief that the Texas Supreme Court still adheres to the traditional "deference" approach. If that Court of Appeals holds first that "neutral principles" should have been followed, then Judge Chupp's approach is out from the start. And since the Dennis Canon has no application to the property of dioceses, it will not be included in the mix of elements which the Court reviews under "neutral principles." Thus there are still several good reasons to hope and expect that Judge Chupp's decision will be reversed on appeal.

Friday, March 11, 2011

The video images from Japan, all over the Web, are mesmerizing. The inexorable progress of a tsunami, sweeping aside everything in its path and advancing steadily inward, toward areas previously thought safe from the sea's destruction, is testimony to nature's raw power:

The video depicts the waves of destruction in real time. Civilization and its poor trappings are no defense against such an onslaught, which can wipe out everything built up over hundreds of years within mere minutes.

Such waves of destruction, however, occur on longer time scales, as well. For an extremely well-constructed graphic showing the many dynastic waves of destruction which have engulfed the Middle East over the last 5000 years, take a look at this map:

It takes only ninety seconds to recap the full span of events, and after watching it a few times, one begins to understand why peace in the Middle East is far from likely in our time. As you watch the colored waves of each dynasty advance, and then succumb to a later one, think of the turmoil and destruction which occurred -- largely through the clash of arms -- to the previous civilizations in their paths.

A similar graphic map at the same site traces the advances of the various religions throughout history. It is not as accurate (middle and southern Africa, for example, do not become wholly Christian in the twentieth century), but it is still useful in portraying how the fronts in the culture wars have advanced and retreated over the centuries:

Living on a planet whose very ability to carry life through its stages of evolution is due to its plate tectonics, we cannot escape the waves of destruction when they occur as part of the periodic shifts in the earth's mantle. But we are also tested by the shifting waves of culture, as divers religions, countries and empires go through their stages of advance and decline. Taking the larger perspective does not alleviate the immediate tragedies and suffering; that is the job of alms -- especially in this Lenten season, as we sacrifice in our own lives to be able to help others more. In thus celebrating our faith, and sharing our good fortune and bounty, we honor God's creation -- including the thin veneers on the surface, as well as the solid substance at our core.

Tuesday, March 8, 2011

It is all too easy to fall into a channel with the morning's readings, and perusal of news and other items on the Web. It has always been thus, of course. Reading a book like The Pox and the Covenant, I was reminded by the bitterness and vociferousness of the debates in Boston as an epidemic of smallpox spread there in 1721 -- debates which began after Cotton Mather, based on his wide reading in scientific and medical literature, had recommended inoculation as a means of preventing the spread of the disease. Most of the learned doctors and physicians were vehemently against the practice, as they believed it contributed to the contagion by spreading it to otherwise healthy people. But his urgings persuaded one brave doctor to begin experimenting with the method -- starting with his own son.

Cotton Mather got his news from many sources, including the Journal of the Royal Philosophical Society, of which he was one of a very few members then living in America. Those opposed to vaccination got their news from many sources as well, including conversations with wide-traveled sea captains and sailors with their tales of the devastation wrought among native Americans wherever smallpox spread on the continent. But in time, the evidence of those who survived inoculation, versus those who perished without it, overcame the opponents, and the physicians quickly added the technique to their repertoire of eighteenth-century remedies.

We still face many calamities today, and on either side are to be found those who are firmly convinced either that they know the solution, or that they at least know what is not the solution. For all the progress since the eighteenth century, however, our methods of debate are still as crude and unenlightening -- full of invective and ad hominem attacks, instead of substantive analysis and objective evaluation of evidence.

Thus in perusing one's usual stops on the Web, every now and then one should deliberately try to break out of the well-trodden path, and head down some new byways. Google's Reader, which I use, has one function that is helpful, called "Recommendations", which will point you to articles and posts on the Web of a kind which are wholly different from your usual fare. Even then, one has to resist the too familiar, or too popular: one of the criteria for a site's being "recommended" is apparently the fact that 100 or more people have already told Google's engines that they "like" it.

Nevertheless, the feature turns up some real gems from time to time, and I thought this morning that I would share some discoveries with you.

Some of us, especially the ones who love mathematics and literature, will appreciate the droll reviews of a book called One Million Random Numbers on Amazon's site, as discussed here on Freakonomics. Once more, here is a sample:

Not Nearly A Million, September 3, 2006 By Liron

This book does not even come close to delivering on its promise of one million random digits. My expectations were high after reading the first sentence, which contained ten unique digits. However, the author seems to have exhasted his creativity in this initial burst, because the other 99.999% of the book is filler in which those same ten digits are shamelessly reused! If you are looking for a larger offering of numerals in various bases, I highly recommend "Peter Rabbit’s ABC and 123".

Wait for the audiobook version, October 19, 2006 By R. Rosini "Newtype"

While the printed version is good, I would have expected the publisher to have an audiobook version as well. A perfect companion for one’s Ipod.

Wait for it…, February 10, 2009 By Cranky Yankee

It started off slow, single digit slow in the beginning but I stuck with it. I eventually learned all about the different numbers, 1,2,3,4,5,6,7,8,9 and 0 and their different combinations. The author introduced them all a bit too quickly for my taste. I would have been perfectly happy with just 1,2,3,4 and 5 for the first 20,000 digits, but then again, I’m not a famous random-number author, am I? After a while, patterns emerged and the true nature of the multiverse was revealed to me, and the jokes were kinda funny. I don’t want to spoil anything but you will LOVE the twist ending! Like 4352204 said to 64231234, "2242 6575 0013 2829!"

And finally, here is a fascinating link to a site dedicated to the quiet, important things in life, such as looking into the flickering flames of the hearth on a winter's evening, or contemplative conversation with close friends. What unifies it all is the simple, but beautifully constructed little house (12 feet by 12 feet) in the mountains where it all takes place:

Take a minute to explore these sites, and follow links from there to some more random places. Your day will be the better for it, I promise.

Saturday, March 5, 2011

[Note:If J.R.R. Tolkien ever took refuge in satire, I am unaware of it. However, in writing the series of recent posts about the coming constitutional crisis in ECUSA and the spurious defense of the new Title IV offered by its drafters, my despair and forebodings, tinged with images from Tolkien's Mordor, eventually overcame my good sense, and the following piece is the result. I offer it in the same sense that Jonathan Swift published his "Modest Proposal": in the hope that by taking things to this extreme, what actually occurs may not be anywhere near as bad as depicted.]

Your trusty Curmudgeon recently received, via anonymous email from a server identifying itself with www.wikileaks.com, a scan of the top-secret communiqué set out below. While its authenticity is still being verified, its subject matter seemed to warrant immediate attention by all those still maintaining their membership in ECUSA. I reproduce the first page of the scan below, and then supply its full text below the image:

To: PB Advisory Council List

From: mk/dbb

Date: 03/01/2011

Subject: DSC plans

Executive summary: As you have been previously advised, this past February 19 the Diocese of South Carolina (DSC) approved certain resolutions to effect amendments to its diocesan constitution and canons. As passed, the resolutions purport to:

(1) have the DSC accede only to the TEC Constitution, and (paradoxically) not to the TEC Canons;

(2) make a qualified accession by the DSC to the TEC Constitution, so that any provision in the DSC Constitution and Canons to the contrary will take precedence; and

(3) specifically make inapplicable in the DSC the GC2009 revisions to Title IV.

Needless to say, these revisions to the DSC governing documents are illegal and ultra vires, hence null and void. However, until we can get them recognized as such within the boundaries of the DSC, we have a situation on our hands which requires a prompt and decisive response.

The purpose of this memorandum is to set out the strategies which the Presiding Bishop (PB) has decided upon, in consultation with her Chancellor and her Special Assistant for Litigation, in order to deal with the rebellious forces in the DSC.

First: The following principles are given, as previously established by long-standing precedent, and therefore governing this problem:

a. TEC is a hierarchical church, with three tiers: TEC at the top, then the individual dioceses, and at the bottom the various parishes.

b. A hierarchy by definition has to have an authority at the top: this is the General Convention. However, because it meets only for two weeks every three years, its authority in the interim is fully vested in the PB and her Executive Council. (Since the Executive Council gathers just three to four times per year, in practice this leaves all authority to be exercised by the PB, who in any event, directs the Executive Council as its CEO.)

c. Every diocese in TEC is subordinate to, and bound by, TEC's Constitution and Canons.

d. Previous occupants of the PB's office have not exercised the full authority of the position, in accordance with the preceding principles. The current PB is determined that there shall be no basis, ever again, to question or doubt the PB's authority over the whole of TEC.

Second: As the CEO of the Executive Council, and the PB of the entire Church, the PB alone decides, in consultation with her Chancellor and Special Assistant for Church Property Litigation, what court proceedings are brought in the name of TEC, who shall conduct them on behalf of TEC in any given case, and on what terms (if any) the cases so brought shall be settled or compromised.

Third: For the same reasons, the PB alone decides how much money is necessary to be spent on the litigation described in the preceding paragraph (in practice, she delegates that decision to her trusted staff with experience in such matters -- such as her Chancellor).

Given these preconditions, the PB herewith adopts and implements the following procedures, effective immediately, with regard to all further steps to be taken in regard to the DSC and its current bishop:

1. From this date forward, the garrison of the Episcopal Faithful (also known as the Episcopal Forum) in Mt. Pleasant, South Carolina, shall receive full logistical and tactical support from everyone still remaining at 815 Second Avenue, in New York. No reasonable request of theirs for assistance shall be rejected, ignored, or delayed -- should they be put under attack, they have the PB's personal assurances that reinforcements from the North will be sent as soon as possible. In any case of doubt, their request for assistance is to be passed upstairs immediately to the attention of Canon Robertson.

2. From this date forward, no Millennium Development Goals shall be implemented in favor of, nor shall funds gathered for those Goals be disbursed to, entities, groups or persons within the DSC (other than the Episcopal Forum -- see #1 above).

3. The PB has personally suspended all further plans for pastoral visitation, episcopal oversight or intervention within the DSC from this date forward until at least July 1, 2011, when the new provisions of Title IV take effect throughout the Church. After that date, the campaign in South Carolina will move into its "war is hell" phase (see next paragraph).

4. On July 1, 2011 at 12:01 a.m. Eastern Standard Time, the PB's Office will issue a Pastoral Direction to the Bishop of South Carolina, on the basis of her new powers under Title IV which take effect as of that instant. The precise terms of the PD are still under consideration, but at a minimum it is currently thought that they will include the following (subject to the Chancellor's approval):

(a) That Bishop Lawrence speak no more in public about his discontent with the national Church, its leaders, or its direction.

(b) That Bishop Lawrence deliver a series of sermons in his Diocese extolling and acknowledging, in positive terms:

(1) the recent governance of the Church under its current PB;

(2) the research and scholarship of the Rt. Rev. Stacy Sauls with regard to the proper uses of, and procedures under, the Abandonment Canons, including specifically the propriety of all depositions by the House of Bishops announced thereunder since the inception of the PB's current term of office; and

(3) his Diocese's subordinate position within the hierarchy of The Episcopal ChurchTM, and his own willingness to submit to this Pastoral Direction without reservation, objection, or cavil, mental or otherwise.

(c) That Bishop Lawrence, on behalf of the DSC, pledge all assistance and support for the ongoing campaign of TEC to force rebellious Dioceses into total submission -- including personally leading a drive for contributions to the newly created William Tecumseh Sherman Trust Fund, established to carry out that purpose.

(e) That, as a final sign of his willing penance and submission to the PD, Bishop Lawrence use the next occasion of a snowstorm in Washington, D.C. (expected sometime during August 2011, according to the latest projections of the Episcopal Millennium Commission on Global Warming) humbly to approach the steps of the PB's see, the National Cathedral, in a cilice and on his knees, begging forgiveness and pardon in the same (Latin) words used by Henry IV at Canossa.

Should, for any reason whatsoever, Bishop Lawrence refuse to submit to this PD, the PB will immediately sign a certificate inhibiting him from the further exercise of episcopal functions within his Diocese. And should he continue in his recalcitrance and obstinacy, the PB will announce reluctantly that she is delegating all further responsibility for TEC actions in South Carolina to her specially constituted "General Sherman Memorial Task Force", consisting of (as presently contemplated) Bishops Sauls, Bruno, Shaw, O'Neill, Price, Ohl, and Buchanan, with the Rt. Rev. J.S. Spong serving as Task Force Chaplain. They will be charged with devising and implementing a strategy, in combination with the members of the Episcopal Forum, to finally bring the Diocese of South Carolina to its knees. (Preliminary plans call for an initial

Note: the contents of this message are absolutely confidential and privileged for those authorized to receive it. Should it come into the hands of any unauthorized person, it is not expected that they will know or understand what it is addressing, or appreciate its importance, let alone read this far. That is why the tic-tac-toe squares are printed on the reverse side.

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